New rules get a big 'no' vote

By PETER A. REESE, Commentary

Published
9:23 pm EDT, Thursday, March 15, 2012

In 2010, New York was forced to replace its lever voting system with computers. Our new vote-scanning system was supposed to be an improvement to prevent a repeat of the Florida presidential election debacle of 2000.

To ensure that all votes are counted as cast, our election laws requires a voter-verifiable paper record of every vote to be available for post-election review. Unfortunately, this system has failed.

Computerized ballot scanners are complex devices prone to failures and errors. By law and regulations, they are allowed to make one mistake in every 1,001 votes scanned, even if the original ballots are perfectly marked. Legally, voter intent trumps all other considerations, even if the voter fails to comply with ballot marking instructions.

Clearly marked ballots showing indisputable voter intent cannot be read by the scanners used in New York. However, if the same ballots are voted absentee, they are declared good.

How many thousands of ballots have not been properly tabulated in the past two years? There is no way to know.

We do know that tens of thousands of invalid overvotes — votes for more candidates than allowed — have been caused by the new system. In New York City, a faulty scanner generated hundreds of extra votes all by itself.

Overvotes were impossible using the old lever machines, but ironically, they occurred in large numbers in Florida in 2000.

How are such errors and disenfranchisement dealt with in New York?

State election laws provide for an audit of a small random sample of scanners — initially 3 percent. This so-called "audit" is conducted by board of elections employees who are eager to find no discrepancies, end the audit and avoid more work.

This non-independent audit has been wrongly interpreted to merely test how well the scanners read perfectly marked ballots. Imperfectly marked ballots that clearly show voter intent are ignored. They are not considered scanner errors because, by design, the machines cannot read them. Even though the auditors recognize these as valid votes, the official tallies are not corrected.

Surely, given all these sources of error, manual recounts of the paper ballots in close elections must be freely available. Not so. No New York court has ever ordered a recount, even if the margin of victory is one vote.

This is probably due to a terrible statute which requires the loser to demonstrate a "likelihood of a material discrepancy ... which creates a substantial possibility" that the result would change if a recount were conducted.

Seasoned attorneys have read this statute a dozen times and don't know what it means. Judges are seldom experts in probability or statistics.

It has been reported that the attorney who wrote this legislation, when faced with the need for a recount of a state Assembly race lost by 15 votes, failed to even ask for one. She apparently felt the effort would be fruitless under her statute.

Our expensive new voting system has resulted in tens of thousands of invalid overvotes and mountains of paper ballots, which the courts will not allow us to see, no matter how close the contest, even though we know the scanners cannot accurately read and tally all votes.

In Slisz vs. Beyer, a case in which I represented Richard Slisz in a race for Tonowanda City Council, the parties agreed to end protracted litigation by simply counting the votes and letting the voters decide. Slisz's one-vote loss turned into a one-vote victory when we found two additional votes for him, one a machine error and the other a circled vote that was not correctly scanned.

If that case stands for anything, it is that the current system does not work.